投资问题(判例).doc

投资问题CasesSummaries of Judgment and Separate (Dissenting)OpinionRules or PrinciplesICJ1970 Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain)The Court observed that when a State admitted into its territory foreign investments or foreign nationals it was bound to extend to them the protection of the law and assumed obligation concerning the treatment to be afforded them. But such obligations were not absolute. In order to bring a claim in respect of the breach of such an obligation, a State must first establish its right to do so.An injury to the shareholders interests resulting from an injury to the rights of the company was insufficient to found a claim. Where it was a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of international law expressly conferred such a right on the shareholders national State.An act directed against and infringing only the companys rights does not involve responsibility towards the shareholders, even if their interests are affectedIt had been maintained that a State could make a claim when investments by its nationals abroad, such investments being part of a States national economic resources, were prejudicially affected in violation of the right of the State itself to have its nationals enjoy a certain treatment .But, in the present state of affairs, such a right could only result from a treaty or special agreement. And no instrument of such a kind was in force between Belgium and Spain .“Not a mere interest affected, but solely a right infringed involves responsibility, so that an act directed against and infringing only the companys rights does not involve responsibility towards the shareholders, even if their interests are affected.” (I.C.J. Reports 1970, p. 36, para. 46.)起诉权 The Jus Standi 起诉权：国际法规则未授予股东所属国家有起诉的权利公司权利的受损不导致对股东承担责任的后果起诉权：投资系该国国民经济资源的一部分，因该国本身要求使其国民享受某种待遇的权利遭到侵犯而受到损害时，该国可以提出索求。（法院认为应以条约或特别协定为前提）外交保护的原则 ICJ2007Case Concerning Ahmadou Sadio Diallo(Republic of Guinea v. Democratic Republic of the Congo)“diplomatic protection consists of the invocation by a State, through diplomatic actionor other means of peaceful settlement, of the responsibility of another State for aninjury caused by an internationally wrongful act of that State to a natural or legalperson that is a national of the former State with a view to the implementation of suchresponsibility” (Article 1 of the draft Articles on Diplomatic Protection adopted by theILC at its Fifty-eighth Session (2006), ILC Report, doc. A/61/10, p. 24).Owing to the substantive development of international law over recent decades in respect of the rights it accords to individuals, the scope ratione materiae of diplomatic protection, originally limited to alleged violations of the minimum standard of treatment of aliens, has subsequently widened to include, inter alia, internationally guaranteed human rights.As the Court recalled in the Barcelona Traction case, “there is . . . no need toinvestigate the many different forms of legal entity provided for by the municipal laws of States”(I.C.J. Reports 1970, p. 34, para. 40). What matters, from the point of view of international law, is to determine whether or not these have a legal personality independent of their members. Conferring independent corporate personality on a company implies granting it rights over its own property, rights which it alone is capable of protecting. As a result, only the State of nationality may exercise diplomatic protection on behalf of the company when its rights are injured by a wrongful act of another State. In determining whether a company possesses independent and distinct legal personality, international law looks to the rules of the relevant domestic law.外交保护 Diplomatic Protection外交保护的适用意见ICJ1959The Interhandel Case(Switzerland v. USA)The rule that local remedies must be exhausted before international proceedings maybe instituted is a well-established rule of customary international law; the rule hasbeen generally observed in cases in which a State has adopted the cause of its nationalwhose rights are claimed to have been disregarded in another State in violation ofInternational law. Before resort may be had to an international court in such asituation, it has been considered necessary that the State where the violation occurredshould have an opportunity to redress it by its own means, within the framework of itsown domestic legal system.用尽国内救济才能行使外交保护原则 local remedies ruleICJ1989Elettronica Sicula S.P.A(ELSI)(United Stated of America v. Italy)In matters of diplomatic protection, it is incumbent on the applicant to prove that localremedies were indeed exhausted or to establish that exceptional circumstances relieved theallegedly injured person whom the applicant seeks to protect of the obligation to exhaust available local remedies外交保护要求必须用尽当地救济（Indeed ,exceptional, available）ICJ1952Anglo-Iranian Oil Co.(UK v.Iran)The Court concludes that the Declaration is limited to disputes relating to the application of treaties or conventions accepted by Iran after the ratification of the Declaration.通过声明可以将较早的条约、公约排除在外，不予适用ICSID2001Metalclad Corporation v.Mexico（this case appears to have been the first arbitral decision to have found a breach of the duty of “fair and equitable treatment.”）.accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.” In interpreting the phrase “fair and equitable treatment,” the Tribunal followed Article 102(2)s instruction to look to NAFTAs stated objectives.“These specifically include transparency and the substantial increase in investment opportunities in the territories of the Patries.”The Tribunal interpreted transparency as imposing two related obligations. First, All relevant legal requirements for the purpose of initiating, completing and successfully operating investments made, or intended to be made ,under the Agreement should be capable of being readily known to all affected investors of another Party. There should be no room for doubt or uncertainty on such matters. Second，“Once the authorities of the central government of any Partybecome aware of any scope for misunderstanding or confusion in this connection, it is their duty to ensure that the correct position is promptly determined and clearly stated.”Expropriation under NAFTA includes not only open, deliberate and acknowledged takings of property, such as outright seizure or formal or obligatory transfer of title in favor of the host State, but also covert or incidental interference with the use of property which has the effect of depriving the owner, in whole or insignificant part, of the use or reasonably-to-be-expected economic benefit of property even if not necessarily to the obvious benefit of the host State.Justice Tysoe faulted the Tribunal for citing“no authority to establish that transparency has become part of customary international law.” 脚注：UNITED NATIONS CENTRE ON TRANSNATIONAL CORPORATIONS,BILATERAL INVESTMENT TREATIES41-45(1988).The obligation of fair and equitable treatment is also found in Article 1of the Organization for Economic Cooperation and Development Draft Convention on the Protection of Foreign Property,7ILM 117,119(1968)(“Each party shall at all times ensure fair and equitable treatment to the property of the nationals of other Parties.”).The commentary to Article 1 states:“The phrase fair and equitable treatment, customary in relevant bilateral agreements, indicates the standard set by international law for the treatment due by each State with regard to the property of foreign nationals.”:Id,at120There has been some dispute about whether the provision for “fair and equitable treatment”in bilateral investment treaties extends beyond the protections of customary international law.F.A.Mann,British Treaties for the Promotion and Protection of Investments,52 BRIT.Y.B.INTLL.241,244(1981),reprinted in F.A.MANN,FURTHER STUDIES IN INTERNATIONAL LAW 234,238(1990)(“The term fair and equitable treatment envisage conduct which goes far beyond the minimum standard and afford protection to a greater extent and according to a much more objective standard than any previously employed form of words.”).The NAFTA Parties, however, have now clarified that as used in Article 1105, the phrase “fair and equitable treatment” does not go beyond the requirements of customary international law. See super note 39.NAFTA有关投资的公平对待及保护的意见NAFTA有关征收应当公平公开的意见法官单独意见中认为透明原则不是国际法中的习惯法提及公平公正待遇的一些文件和书籍ICSID2002 Mihaly International Corporation v. Democratic Socialistthe question whether an expenditure constitutes an investment or not is hardly to be governed by whether or not the expenditure is large or small. Ultimately, it is always a matter for the parties to determine at what point in their negotiations they wish to engage the provisions of the Convention by entering into an investment.The Tribunal is consequently unable to accept as a valid denomination of “investment”, the unilateral or internal characterization of certain expenditures by the Claimant in preparation for a project of investment. The only reference made by the Claimant to the BIT, in particular, Article II(2), is not to any extended definition of investment but to existing “investment” or investment in esse or in being, which is to be accorded “fair and equitable treatment”. In the case under review, the Tribunal finds that the Claimant has not provided evidence of such an investment in being which qualifies for “full protection and security.” Failing to provide evidence of admission of such an investment, the Claimants request forinitiation of a proceeding to settle an investment dispute is, to say the least, premature. However, in finding the request to be unfounded, the Tribunal does not say that it is frivolous, vexatious or malicious. Nor does the Tribunals determination that the subject-matter of the dispute, if any, falls outside the jurisdiction of ICSID and beyond the competence of the Tribunal precludes whatever recourse the Claimant may have at its disposal to pursue its claim arising out of a commercial, financial or other types of dispute. The Tribunals conclusions are declared to be without prejudice to any rights of action which may be available before other instances, national or international, with the consent of the Parties, if required.法院有关认定为投资的观点ICSID2002Marivin Feldman v.MexicoA threshold question is whether there is an “investment” that is covered by NAFTA. The term “investment” is defined in Article 1139, in exceedingly broad terms. It covers almost every type of financial interest, direct or indirect, except certain claims to money. The first listed item under “investment” is “an enterprise.” There is no disagreement among the parties that Corporacin de Exportaciones Mexicanas, S.A. (CEMSA) is a corporate entity organized under the laws of Mexico, essentially wholly owned by the American citizen investor, Marvin Roy Feldman Karpa (first Feldman statement, para. 1). Among the dictionary definitions of “enterprise” are “a unit of economic organization or activity; esp. a business organization” (Websters New Collegiate Dictionary, 1977 ed.). As such, the Tribunal determines that CEMSA comes within the term “enterprise” and is thus an “investment” under NAFTA. This conclusion is consistent with that reached by other NAFTA Chapter 11 tribunals. For example, the tribunal in S.D. Myers v.Canada concluded that a Canadian corporation organized for the purpose offacilitating hazardous waste exports to the United States, an affiliate of S.D. Myers in the United States owned by the same shareholders as S.D. Myers, satisfied the NAFTA requirements for an “investment.” (S.D. Myers v. Government of Canada, Partial Award, November 13, 2000, paras. 230-231,/documents/organization/3992.pdf.)First, the Tribunal is aware that not every business problemexperienced by a foreign investor is an indirect or creeping expropriation under Article 1110, or a denial of due process or fair and equitable treatment under Article 1110(1)(c). As the Azinian tribunal observed, “It is a fact of life everywhere that individuals may be disappointed in their dealings with public authorities It may be safely assumed that many Mexican parties can be found who had business dealings with governmental entities which were not to their satisfaction” (Robert Azinian and Others v. The United Mexican States, Award, November 1, 1999, para. 83, 14 ICSID ReviewFILJ 2, 1999.) To paraphrase Azinian, not all government regulatory activity that makes it difficult or impossible for an investor to carry out a particular business, change in the law or change in the application of existing laws that makes it uneconomical to continue a particular business, is an expropriation under Article 1110. Governments, in their exercise of regulatory power, frequently change their laws and regulations in response to changing economic circumstances or changing political, economic or social considerations. Those changes may well make certain activities less profitable or even uneconomic to continue.The national treatment/non-discrimination provision is a fundamental obligation of Chapter 11.35 The concept is not new with NAFTA. Analogous language in Article III of the GATT has applied as between Canada and the United States since 1947, and with Mexico since 1985, with regard to trade in goods. Article 1602 of the United StatesCanada Free Trade Agreement, with regard to investment, applied between those two NAFTA Parties from 1989-1993. NAFTAs Article 1102(2) provides that:“Each Party shall accord to investments of investors of another Party treatment no less favorable than that it accords, in like circumstances, to investments of its own investors with respect to the establishment, acquisition, expansion, management,Conduct, operation, and sale or other disposition of investments.”Despite its deceptively simple language, the interpretative hurdles for Article 1102 are several. They include (a) which domestic investors, if any, are in “like circumstances” with the foreign investor; (b) whether there has been discrimination against foreign investors, either de jure or de facto; (c) the extent to which d